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An Overview of Child Protection Legislation in England

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An Overview of Child Protection Legislation in England BRIEFING PAPER Number 6787, 19 February 2020 An overview of child By David Foster protection legislation in England Contents: 1. Children Act 1989 2. Children Act 2004 3. Further information www.parliament.uk/commons-library | intranet.parliament.uk/commons-library | [email protected] | @commonslibrary 2 An overview of child protection legislation in England Contents Summary 3 1. Children Act 1989 4 1.1 Public law 4 Provision of services for children in need 4 Children suffering significant harm 5 Functions relating to looked after children 6 Emergency protection orders 7 1.2 Private law 7 Section 8 orders 7 Special Guardianship Orders 8 2. Children Act 2004 9 2.1 Background 9 2.2 The Children Act 2004 9 2.3 Children and Social Work Act 2017 10 Safeguarding partners 10 Child Safeguarding Practice Review Panels 11 Child Death Reviews 11 3. Further information 12 3.1 Statutory guidance 12 3.2 Further information 12 Cover page image copyright Free-photos. Licensed under Pixabay licence/image cropped. 3 Commons Library Briefing, 19 February 2020 Summary This briefing gives a very broad overview of the legislative framework for child protection in England. It is intended as a short introduction to some of the key areas, rather than a comprehensive note. Children Act 1989 The current child protection system in England is grounded in the Children Act 1989, as amended. The Act establishes a number of key principles, including • the concept of parental responsibility. • the paramount nature of the child’s welfare when a matter under the Act is before a court. • that children are best looked after by their family unless intervention in family life is essential. The Act places a general duty on local authorities to promote and safeguard the welfare of children in need in their area by providing a range of services appropriate to those children’s needs. It additionally sets out what a local authority must do when it has reasonable cause to suspect that a child in its area is suffering, or is likely to suffer significant harm. Section 31 of the Act sets out the circumstances under which a court may make an order placing a child in the care of the local authority (a care order). When determining whether or not to make such an order, a court must have regard to the ‘welfare checklist’ set out in section 1(3) of the Act. The Act also sets out the functions of local authorities in relation to looked after children, including a duty under section 22(3) to safeguard and promote the welfare of children in their care. Children Act 2004 Following Lord Lamming’s inquiry into the murder of Victoria Climbié, the Children Act 2004 made a number of key changes to the child protection framework. Further changes were made by the Children and Social Work Act 2017, which amended the 2004 Act in a number of areas. Among other things, the 2004 Act, as amended: • places a duty on local authorities in England to make arrangements to promote co- operation with key partners and local agencies, with a view to improving the well-being of children in the authority’s area. • places a duty on a range of agencies, including local authorities, the police and health services, to ensure that they consider the need to safeguard and promote the welfare of children when carrying out their functions. • establishes the roles and responsibilities of safeguarding partners (the local authority, NHS Clinical Commissioning Groups and the police), which are responsible for determining how safeguarding arrangements should work in their area. Statutory guidance The statutory guidance, Working Together to Safeguard Children, sets out how individuals and organisations should work together to safeguard and promote the welfare of children and young people in accordance with the relevant legislation. It was last updated in July 2018 to reflect changes brought about by the Children and Social Work Act 2017. 4 An overview of child protection legislation in England 1. Children Act 1989 There is no single piece of legislation, but “rather a myriad of laws and guidance”, that are relevant to safeguarding and promoting the welfare of children in England.1 This briefing gives a very broad overview of this legislative framework. It should not be taken to be a comprehensive guide, but rather a short introduction to some of the key areas. A number of other Library briefings, referenced below, provide more detailed information on specific areas. 1.1 Public law The current child protection system in England is grounded in the Children Act 1989, which establishes a number of key principles including: • The paramount nature of the child’s welfare when a matter under the Act is before a court. • The concept of parental responsibility (Library briefing 2827, Children: parental responsibility - what is it and how is it gained and lost (England and Wales), provides more information). • That children are best looked after by their family unless intervention in family life is essential.2 Provision of services for children in need Section 17 of the Act places a general duty on local authorities to promote and safeguard the welfare of children in need in their area by providing a range of services appropriate to those children’s needs. As far as is consistent with this duty, authorities are required to promote the upbringing of children in need by their families. Section 17 defines a child in need as a child who: (a) [is] unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision…of services by a local authority…; (b) [whose] development is likely to be significantly impaired, or further impaired, without the provision of such services; or (c) [is] disabled. Under the 1989 Act, local authorities have a duty to take reasonable steps to identify children in need in their area, and are responsible for determining what services should be provided to them.3 The Act specifies the range of services that can be provided.4 1 NSPCC inform, NSPCC factsheet: An introduction to child protection legislation in the UK, May 2012, p1 2 Child protection system in England, NSPCC Learning, last updated 29 November 2019; Department for Education, The Children Act 1989 guidance and regulations Volume 2: care planning, placement and case review, June 2015, p13 3 Children Act 1989, Schedule 2, part 1 4 Children Act 1989, sections 17, 18 and 20, schedule 2, paras 8, 10 5 Commons Library Briefing, 19 February 2020 When deciding what services to provide, local authorities must, as far as is reasonably practicable and consistent with the welfare of the child, give due consideration to the child’s wishes. Under section 29 of the Act, local authorities may charge for providing services to a child in need and their family (but not for advice, guidance or counselling). But they may not charge more than a person “can reasonably be expected to pay” and they cannot charge people if they are in receipt of certain benefits.5 Under section 20 of the Act, local authorities have a duty to provide accommodation to children in need who require it because: • There is no one who has parental responsibility for them; or • They are lost or abandoned; or • The person who has been caring for them is prevented from provided them with suitable accommodation or care or • They have reached 16 and their welfare is “likely to be seriously prejudiced” if they are not provided with accommodation. A child provided with accommodation under section 20 (sometimes referred to as a voluntary arrangement) is a looked after child. Provisions relating to young carers and parent carers in need were inserted into Part 3 of the 1989 Act by the Children and Families Act 2014. They came into force on 1 April 2015. Further information on the provision of services for children in need is available in Library Briefing 7730, Local authority support for children in need (England). Children suffering significant harm Part five of the Children Act 1989 sets out what local authorities should do to protect children at risk of harm. Under section 47 of the Act a local authority must make the necessary enquiries to decide whether it should act to safeguard or promote a child’s welfare where it: • is informed that a child in their area is the subject of an emergency protection order (see below) or is in police protection; or • has “reasonable cause to suspect that a child who lives, or is found in their area is suffering, or is likely to suffer, significant harm” Certain bodies (including other local authorities, local housing authorities, and clinical commissioning groups) are under a duty to assist the local authority in conducting enquiries under section 47.6 As when deciding what services to provide under section 17, when deciding what action to take under section 47 of the Children Act local authorities must, as far as is reasonably practicable and consistent with the welfare of the child, give due consideration to the child’s wishes. 5 Children Act 1989, section 29 6 Children Act 1989, section 47(9) 6 An overview of child protection legislation in England Chapter 1 of the Government’s statutory guidance, Working Together to Safeguard Children, provides more detail on the process of managing section 47 enquiries. Functions relating to looked after children The functions of local authorities in relation to looked after children are also set out in the 1989 Act, as amended (including by the Children (Leaving Care) Act 2000, the Adoption and Children Act 2002 and the Children and Young Persons Act 2008).
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